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Settlement of commercial disputes: Draft convention on transparency in treaty-based investor-state arbitration

** this is the draft text as it has been proposed for negotiations during the Sixtieth session of UNCITRAL Working Group II (arbitration and Conci iation! in Ne" #ork$ %&' (ebruar) *+,- ** ----

Draft convention on transparency in treaty-based investor-state arbitration Preamble


The Parties to this Convention, [Reaffirmin their belief that international trade on the basis of e!uality and mutual benefit is an important element in promotin friendly relations amon States, Convinced that the pro ressive harmoni"ation and unification of international trade la#, in reducin or removin le al obstacles to the flo# of international trade, si nificantly contributes to universal economic cooperation amon all States on a basis of e!uality and common interest, and to the #ell-bein of all peoples,$ Reco ni"in the value of arbitration as a method of settlin disputes that may arise in the conte%t of international relations, and the e%tensive and #ide-ran in use of arbitration for the settlement of investor-State disputes, &lso reco ni"in the need for provisions on transparency in the settlement of treaty-based investor-State disputes to ta'e account of the public interest involved in such arbitrations, (elievin that the Rules on Transparency in Treaty-based )nvestor-State &rbitration adopted by the *nited +ations Commission on )nternational Trade ,a# on -- .uly /0-1 23*+C)TR&, Rules on Transparency45, effective as of - &pril /0-6, #ould contribute si nificantly to the establishment of a harmoni"ed le al frame#or' for a fair and efficient settlement of international investment disputes, +otin the reat number of treaties providin for the protection of investments or investors already in force, and the practical importance of promotin the application of the *+C)TR&, Rules on Transparency to arbitration under those already concluded treaties, 37ave a reed as follo#s:

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Scope of application

-8 This Convention applies to investor-State arbitration conducted on the basis of a treaty providin for the protection of investments or investors 29[investment$ treaty:58 /8 The term 9[investment$ treaty: means any bilateral or multilateral treaty, includin any treaty commonly referred to as a free trade a reement, economic inte ration a reement, trade and investment frame#or' or cooperation a reement, or bilateral investment treaty, #hich contains provisions on the protection of investments or investors and a ri ht for investors to resort to arbitration a ainst Parties to that [investment$ treaty8

[)nterpretation
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)n the interpretation of this Convention, re ard is to be had to its international character and to the need to promote uniformity in its application and the observance of ood faith in international trade8$

&pplication of the *+C)TR&, Rules on Transparency


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-8 ;ach Contractin Party to this Convention a rees that the *+C)TR&, Rules on Transparency, as they may be revised from time to time, shall apply to any investor-State arbitration, #hether or not initiated under the *+C)TR&, &rbitration Rules, conducted pursuant to a[n investment$ treaty concluded before - &pril /0-6: a8 #here the State of the claimant is a Contractin Party to this Convention< and b8 #here the State of the claimant is not a Contractin Party to this Convention or that State has made a relevant reservation under article =, but the claimant a rees to the application of the *+C)TR&, Rules on Transparency8 /8 The final sentence of article -2>5 of the *+C)TR&, Rules on Transparency shall not apply to arbitrations arisin under [investment$ treaties fallin under para raph -2a58 18 & most favoured nation provision cannot be invo'ed to avoid the application of the *+C)TR&, Rules on Transparency under this Convention, nor to render the

*+C)TR&, Rules on Transparency applicable #ould they other#ise not apply8

Declaration on future [investment$ treaties


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& Contractin Party may declare that the *+C)TR&, Rules on Transparency, as they may be revised from time to time, shall apply to any investor-State arbitration, #hether or not initiated under the *+C)TR&, &rbitration Rules, conducted pursuant to a[n investment$ treaty concluded on or after - &pril /0-6: a8 #here the State of the claimant is a Contractin Party to this Convention< and?or b8 #here the State of the claimant is not a Contractin Party to this Convention or that State has made a relevant reservation under article =, but the claimant a rees to the application of the *+C)TR&, Rules on Transparency8

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Reservations

-8 & Contractin Party may declare that: a8 a specific [investment$ treaty, identified by title, name of Parties to that [investment$ treaty, and date that [investment$ treaty #as concluded, shall not be sub@ect to this Convention< b8 article 12-52a5 and?or 2-52b5, and, if applicable, article 62a5 and?or 2b5 shall not apply to arbitrations conducted usin certain sets of arbitration rules or procedures other than the *+C)TR&, &rbitration Rules< c8 article 12-52b5 and?or, if applicable, article 62b5 #ill not apply to arbitrations to #hich it is a disputin party8 /8 )n the event of amendment to the *+C)TR&, Rules on Transparency, a Contractin Party may, #ithin si% months of the adoption of such amendment, ma'e a reservation that such revised version of those Rules shall not apply under this Convention and that, instead, the most recent version of the *+C)TR&, Rules on Transparency to #hich that Contractin Party had not filed a reservation pursuant to this para raph, shall apply8 18 +o reservations are permitted to this Convention other than as provided in this article8

Declarations and reservations


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-8 Reservations and declarations may be made by a Contractin Party at any

time, save for reservation under article =2/58 /8 Declarations, reservations, and their confirmations are to be formally notified to the depositary8 18 Declarations and reservations made at the time of si nature are sub@ect to confirmation upon ratification, acceptance or approval8 Such a declaration or a reservation ta'es effect simultaneously #ith the entry into force of this Convention in respect of the Contractin Party concerned8 68 & declaration or a reservation of #hich the depositary receives formal notification after the entry into force of the Convention ta'es effect on the first day of the month follo#in the e%piration of t#elve months after the date of its receipt by the depositary8 =8 &ny Party that ma'es a declaration or a reservation under this Convention may #ithdra# it at any time and may, sub@ect to article =, modify it at any time8 Such modifications or #ithdra#als are to be formally notified to the depositary8 A8 [& modification or #ithdra#al #hich has the purpose or effect of e%pandin the application of the *+C)TR&, Rules on Transparency is to ta'e effect on the first day of the month follo#in the e%piration of si% months after the date of receipt of the notification by the depositary8$ &ny [other$ modification or #ithdra#al is to ta'e effect on the first day of the month follo#in the e%piration of t#elve months after the date of receipt of the notification by the depositary8

Depositary
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The Secretary-Beneral of the *nited +ations is hereby desi nated as the depository of this Convention8

Si nature, ratification, acceptance, approval, accession


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-8 This Convention is open until [date$ for si nature by 2a5 any State that is a Party to a[n investment$ treaty< or 2b5 a re ional economic inte ration or ani"ation constituted by soverei n States that is a Party to a[n investment$ treaty8 /8 This Convention is sub@ect to ratification, acceptance or approval by the si natories to this Convention8 18 This Convention is open for accession by all States or re ional economic inte ration or ani"ations referred to in para raph - #hich are not si natories

as from the date it is open for si nature8 68 )nstruments of ratification, acceptance, approval or accession are to be deposited #ith the depositary8

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;ffect in territorial units

-8 )f a Contractin State has t#o or more territorial units, #hich are parties to [investment$ treaties in their o#n name, it may, at the time of si nature, ratification, acceptance, approval or accession, declare that this Convention is to e%tend to such territorial units or only to one or more of them, and may amend its declaration by submittin another declaration at any time8 [The Contractin Party may, in such declaration, ma'e any of the reservations under article = #ith respect to each territorial unit that it so desi nates8$ /8 These declarations are to be notified to the depositary and are to state e%pressly the territorial units to #hich the Convention e%tends8 18 Ehen a Contractin State has declared pursuant to this article that this Convention e%tends to one or more but not all of such territorial units, a place located in a territorial unit to #hich this Convention does not e%tend is not considered to be in a Contractin State for the purposes of this Convention8 68 )f a Contractin State ma'es no declaration pursuant to para raph - of this article, the Convention is to e%tend to all territorial units of that Contractin State8

Participation by re ional economic inte ration or ani"ations


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-8 &ny reference to a 9Contractin Party:, 9Contractin Parties: or 9State: in this Convention applies e!ually to a re ional economic inte ration or ani"ation #hen the conte%t so re!uires8 /8 Ehen the number of Contractin Parties is relevant in this Convention, the re ional economic inte ration or ani"ation does not count as a Contractin Party in addition to its member States #hich are Contractin Parties8

;ntry into force


&rticle --8 This Convention enters into force on the first day of the month follo#in the e%piration of si% months after the date of deposit of the third instrument of ratification, acceptance, approval or accession8 /8 Ehen a State or a re ional economic inte ration or ani"ation ratifies,

accepts, approves or accedes to this Convention after the deposit of the third instrument of ratification, acceptance, approval or accession, this Convention enters into force in respect of that State or a re ional economic inte ration or ani"ation on the first day of the month follo#in the e%piration of si% months after the date of the deposit of its instrument of ratification, acceptance, approval or accession8

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Time of application

This Convention and any declaration or reservation apply only to arbitrations that have been commenced after the date #hen the Convention, declaration or reservation enters into force or ta'es effect in respect of each Contractin Party8

Revision and amendment


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-8 &t the re!uest of not less than one-third of the Contractin Parties to this Convention, the Secretary-Beneral of the *nited +ations shall convene a conference of the Contractin Parties for revisin or amendin it8 /8 &ny instrument of ratification, acceptance, approval or accession, deposited after the entry into force of an amendment to this Convention is deemed to apply to the Convention as amended8

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Denunciation of this Convention

-8 & Contractin Party may denounce this Convention at any time by means of a notification in #ritin addressed to the depositary8 The denunciation ta'es effect on the first day of the month follo#in the e%piration of one year after the notification is received by the depositary8 /8 This Convention #ill continue to apply to arbitrations in respect of #hich arbitral proceedin s have been commenced before the denunciation ta'es effect8

DF+; at [place$, this [date$, in a sin le ori inal, of #hich the &rabic, Chinese, ;n lish, Grench, Russian and Spanish te%ts are e!ually authentic8 )+ E)T+;SS E7;R;FG the undersi ned plenipotentiaries, bein duly authorised [by their respective Bovernments$, have si ned the present Convention84

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